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Staub v. Toy Factory3/23/2000
t but where spaces free of ice were available in parking lot); Rutter, supra (plurality) (a jury question existed as to whether plaintiff voluntarily assumed the risk where he was injured during mandatory "jungle football" practice for high school football team).
19 Additionally, we find the cases cited by appellees distinguishable for various reasons. For example, neither Hill v. Richards, 406 Pa. 452, 178 A.2d 705 (1962), nor Kopp v. Noonan, Inc., 385 Pa. 460, 123 A.2d 429 (1956), involved employees operating within the scope of their employment when they were injured. Furthermore, Mentzer v. Ognibene, 597 A.2d 604 (Pa.Super. 1991) (plurality), appeal denied, 530 Pa. 660, 609 A.2d 168 (1992), is not an assumption of risk case.
20 In Malinder v. Jenkins Elevator Machine Co., 538 A.2d 509 (Pa.Super. 1988) (en banc), also cited by appellees, this court addressed the viability of assumption of risk as a defense in a negligence case after enactment of the Comparative Negligence Act, 42 Pa.C.S.A. § 7102. Following Carrender, supra, the Malinder court found that Carrender factually and procedurally controlled the case before it and held that assumption of risk survived enactment of the comparative negligence statute. Malinder, 538 A.2d at 516. The Malinder court did not address the issue whether an employee could voluntarily assume a risk of his employment even though Malinder was injured while so employed.
21 It is true that Zinn, supra, a federal district court case applying Pennsylvania law, found that plaintiff assumed the risk of slipping on a slippery floor and falling into a six-foot-deep opening nearby when he continued to work after the landowner refused to remedy the dangerous situation. Zinn, 880 F.Supp. at 317-318. Nevertheless, United States District Court opinions construing Pennsylvania law are not binding on this court. See Clay v. Advanced Computer Applications, Inc., 536 A.2d 1375, 1380 n.5 (Pa.Super. 1988) (a federal court's interpretation of state law does not bind a state court), reversed in part on other grounds, 522 Pa. 86, 559 A.2d 917 (1989). Additionally, the Zinn court acknowledged it was attempting to predict how this state's highest court would resolve the assumption of risk issue after what the Zinn court described as the fragmented opinion in Howell, supra. Zinn, 880 F.Supp. at 317. The Zinn court also decided the issue prior to this court's decision in Jara, supra, a case in which our supreme court recently denied allocatur. Thus, we decline to follow Zinn.
22 Nevertheless, appellees argue that appellant failed to introduce evidence of coercion; therefore, no material issue of fact exists as to the voluntariness of appellant's behavior. (Carrara's brief at 9-14; Grimm's brief at 40-44.) We do not agree, however, that a plaintiff/employee is required to introduce evidence of coercion to establish the involuntariness of his behavior. Under the Restatement:
§ 496E. Necessity of Voluntary Assumption
(1) A plaintiff does not assume a risk of harm unless he voluntarily accepts the risk.
(2) The plaintiff's acceptance of a risk is not voluntary if the defendant's tortious conduct has left him no reasonable alternative course of conduct in order to . . . . (b) exercise or protect a right or privilege of which the defendant has no right to deprive him.
Restatement (Second) of Torts § 496E (1965). According to the comment to this section, the assumption of risk is not voluntary where a defendant has an independent duty to the plaintiff and his breach of that duty compels the plaintiff to encounter the particular risk in order to protect a right or privilege of which the defendant has no p
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